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A Defence lawyer's perspective on issues in criminal law
Please be aware that all commentary in my blog is designed to promote discourse on a variety of topics. Though I certainly do some research on the topics discussed and often offer my "two-cents", please keep in mind that nothing I say in this blog is meant to be taken as authoritative on any subject. My comments are really just me exercising my freedom of expression for the purpose of offering some insight on topics related to the practice of criminal law. As with all topics of discussion, it is important for you to be critical. If you need a defence lawyer, please call 403.452.8018 for a free telephone consultation or consult with an experienced Calgary criminal lawyer. Happy reading! Happy watching!
Power in the Uniform
Tagged Criminal Defence BlogAugust 10, 2019
The story of Kenrick McRae’s interaction with Montreal Police is reported as “racial profiling”. Though the article is about racial profiling by police, it got me thinking about less obvious ways in which law enforcement maintains its hegemonic relationship with the public. In this post I will reflect on the story of Kenrick McRae and briefly discuss racial profiling, criminal profiling and abuse of power. From this I will transition to the subject of the psychology of colour as it relates to police hegemony over the public.
From reading the online story posted by the CBC it is both easy and logical to conclude that racial profiling may have played a significant role in the investigation of Mr. McRae, who was fined nearly $500 when police noticed empty beer bottles protruding from a bag that he was taking to recycling.
It is alleged in the news report that the first investigating officer advised McRae that he suspected him to be “driving under the influence”. Mr. McRae responded by encouraging the police to conduct a “field sobriety test” to which the officer responded that he didn’t have time. This excuse is curious, for three additional police cruisers showed up to deal with Mr. McRae. From reading the story, it’s hard to ignore the possibility that Montreal Police were bullying him.
It is noteworthy that for whatever reason, the Montreal Police Department refused to comment on Mr. McRae’s case; meaning, the side accused of wrongdoing remains silent and thus offers no context or explanation for what happened. To that end, the police may have a reasonable explanation for doing what they did, or perhaps not.
The purpose for me referencing Kenrick McRae’s story is not really to speak about racial profiling; rather, it is to address the commingling of perception and power.
Before addressing this topic, I feel it is important for me to highlight that as consumers of online media, we should always be mindful about potential information deficiencies in news reports, articles and blogs. This is not to say that “news” is necessarily reporting falsehoods (or that bloggers are); rather, it is to say that it’s not hard to report true -- or likely true -- information that leaves an inaccurate impression. Accordingly, please consume information (including this article) with extreme caution. It is up to you to be duly diligent.
RACIAL PROFILING vs. CRIMINAL PROFILING
The American Civil Liberties Union (ACLU) defines racial profiling as a “…discriminatory practice by law enforcement officials of targeting individuals for suspicion of crime based on the individual's race, ethnicity, religion or national origin”.
The ACLU properly distinguishes racial profiling from “criminal profiling”:
Criminal profiling, generally, as practiced by police, is the reliance on a group of characteristics they believe to be associated with crime. Examples of racial profiling are the use of race to determine which drivers to stop for minor traffic violations (such as for example, Mr. McRae’s case) or the use of race to determine which pedestrians to search for illegal contraband.
There is an important distinction between racial profiling and criminal profiling. Police are expected to use their experience and common sense when investigating crime. In so doing, they are likely routinely “criminal profiling”.
Basic criminal profiling requires that they target suspects based on characteristics or behaviour that they have learned to be associated with a particular kind of criminal activity. To conclude, however, that a person is a criminal for no other reason than he or she has a particular skin colour is obviously wrong. On the other hand, just because police investigate any person having a particular skin colour doesn’t mean they are racial profiling. My point is, we should be cautious damning police if they do and damning them if they do not.
THE POWER OF PERCEPTION
Abuse of power by law enforcement can take many forms. It includes abusing authority for the purpose of harassment or strong arming compliance.
In criminal law, there is a saying that “justice must not only be done, but must be seen to be done”. This is a powerful reminder that even if the outcome of a case is in law “just”, if it’s not “seen to be just”, then the public perception of our justice system is “unjust”. This is an ironic twist where fact can be overridden by perception. Of course, perception is not through the eyes of irrational persons, it is through the lens of a reasonable person, fixed with an understanding of our justice system, its values and Charter principles.
It is important that our police treat citizens with a peaceful dignity consistent with living in Canada. Respect is not fear. With that in mind, it is important that police power be controlled and reserved, to the point that when it is exercised, it is not only “in fact” in the public interest but “seen to be” in the public interest. Abuse of power by State agents is never in the public interest. Using police power to stimulate “fear” is not the same as law enforcement that engenders “respect”.
From reading the CBC news report, it appears Mr. McRae’s interaction with the police was one of fear, not respect. As reported:
McRae said he saw three additional police cruisers arrive. Fearing for his safety, he handed over his identification.
RESPECT FOR LAW ENFORCEMENT
In this writer’s opinion, many police departments in jurisdictions across Canada are becoming more closely aligned with fear than respect.
Most police officers have no greater moral compass than ordinary citizens. Also, most are not significantly educated by long years of schooling. They don’t have special sensitivity training. Many have never taken an ethics course. Indeed, I suspect many members of every police service across Canada entered the profession for reasons having less to do with public interest than power.
What police are trained to do is investigate crime. Part of their police education is with weapons. They are trained to do combat. To be clear, police should have the necessary training and implements for doing a job that can occasionally be dangerous. However, as Mr. Justice Dixon said in Gabrielson v. Hindle,  A.J. 175*, “with all privileges go responsibility”. In his words:
…police forces are given the very special niche in our society. They represent us in the protection of our property and our well-being from abuses and ravages of those who commit crime. They are given special powers and a corresponding standard of conduct is demanded of them. Police powers are to be used intelligently, fairly, and without rancor or favor. There are some rough people wandering around our country and the police must be alert to ensure that the appropriate measure of law enforcement is available to impose the will and requirement of the state upon such persons. It is for this reason that police are permitted to carry arms. They are selected for physical prowess. They are well trained in the use of weapons and martial arts and are provided with the best of equipment, including highly and efficient communication systems. But notwithstanding all of these, good police work stems to a very large extent through the use of common sense and from a gaining of, and retention of the respect of the public (Gabrielson v. Hindle supra).
PERCEPTION AND POWER
To avoid any misconceptions, it is very important for me to highlight that I deal with police on a daily basis. I am pleased to inform anyone who has read this far that the vast majority of police are quality people, doing a quality job. But as the saying goes, it only takes “one bad apple to spoil the bunch”.
In Kenrick McRae’s case, there is a reasonable possibility that the “bad apple” was the first investigating officer -- the three responding units, arguably spoiled by their mere presence.
Just for a moment, imagine standing in Mr. McRae’s shoes. You are an African American male, aware that many African-American males have been killed by law enforcement in recent years. You have been harassed in the past. On this occasion, a police cruiser activates its emergency lights -- you have been stopped again. The police cruiser is an intimidating, black four-door vehicle, with an aggressive grill and a front mounted bulbar. Exiting the vehicle is an armed police officer -- maybe with his fingers edging a firearm (or other weapon) holstered on his hip. This officer is dressed in a very dark, blue-black uniform, made larger by body armour.
I grew up in Calgary. For decades the police in Calgary drove white vehicles and wore light blue uniforms. When they rolled through my neighbourhood I felt a sense of security. I was happy they were present.
As I greyed with years, the appearance of Calgary Police changed. Their white vehicles and light uniforms darkened, now mostly black. When they then rolled through my community, my previous good feelings were unsettled. Their Gestapo/Stormtrooper appearance was definitely less inviting; more threatening.
Today, perhaps jaded by long years in criminal justice (both as a Crown Prosecutor and Calgary Defence lawyer), I don’t have a good feeling when I see police. Their presence does not make me feel comfortable. Personally, I feel they are more akin to noble-cause corrupted armed tax collectors than friendly Constables in the community. I feel the police mandate is more aligned with issuing tickets for the sole purpose of lining government coffers, than engaging meaningfully with the community. Of course, as the police collect more revenue, there will be more police, who will do more armed tax collection, used to hire more police. Every issued ticket hurts ordinary citizens. And on it goes.
I’m not saying my emotional response is correct or even fair. Most police have no choice of uniform and most wearing that uniform are doing a good job. However, my point is that there is a close connection between perception and power.
THE PSYCHOLOGY OF COLOUR
Black is authoritative and powerful. It is associated with power, fear, mystery, strength, authority, elegance, formality, death, evil and aggression. Psychologically, the colour black can evoke strong emotions.
Management at the various police services across Canada are likely well aware of the “psychology of colour”. They know that painting a police cruiser black or mostly black is more intimidating than white or lighter colours. They know that dressing members in black -- or in blue so dark that it appears black -- is more threatening than dressing them in lighter colours, such as light blue or tan. Interestingly, it was a 2016 CBC report that addressed the psychology of colour by law enforcement.
In the words of Jonathon Vaughn Strebly,”design creates reality”.
Our police culture, how officers show up, needs to reflect reality.
We need officers on the street engaging [with the] community, visiting schools, and chatting with seniors. Not lurking around, scaring the crap out of law-abiding citizens.
THE BALANCE DOES NOT ALWAYS FAVOuR OFFICER SAFETY
Now, to be fair, there is some thought that because black absorbs colour, police dressed in black are harder to target and thus less likely to be shot in the line of duty. Truth or convenience?
In today's world it seems we can come up with an excuse for anything as long as the excuse has a "safety" element. Simply watch this evenings news. It would be surprising if "safety" was not mentioned in at least one report.
Even if it is true that black uniforms might reduce the chances of being struck with a bullet, there must be a balance. If safety was the only concern for risk free law enforcement, police would be legally empowered to takedown citizens at gunpoint on every occasion. After all, this is the safest thing to do. Apprehend and control first, talk later. Thankfully, this is not how policing in Canada works. Not yet at least.
For what it’s worth, statistics Canada reported that in over 40 years, 101 police officers have been the victims of homicide while on the job.
I am not saying this is acceptable; rather, I am saying that for work dealing with allegedly dangerous people, these numbers are actually quite low. By contrast, 65-people in 2017 alone were killed by police. Of the 65, 29 were shot to death. These numbers are thought to be conservative.
Again, I think these numbers are overall quite low. That said, some might argue, “1 is too many”. In my view, living in a Nation populated by millions, “one is too many” is not realistic.
CONCLUSION: Appearance matters
Proportionally speaking, the vast amount of police work is non-violent. The vast majority of citizens are reasonably respectful and cooperative. If I am wrong, then all parties need to be more introspective about their role in creating hostility in the community. In fact, whenever the community is hostile to police, law enforcement should never relegate the issue to the fringes of thoughtful contemplation. Law enforcement's role in the problem should not be ignored or marginalized; rather, it should be taken very seriously, for police presence should engender a sense of peace, not hostility -- respect, not fear.
What is obvious from the CBC report regarding Kenrick McRae is that he felt intimidated by the police. This is not good. It appears he may have been bullied and racially profiled by the police; this is worse. Montreal Police, like Calgary Police and other police forces are an imposing presence.
As members of the public, we should always be concerned about the proper, legal and peaceful use of power by law enforcement. In a world where perception matters and appearance means a lot, perhaps law enforcement needs to do some serious reflection on how its members act, how they interact with the public and how they appear. Where citizens must check themselves when being dealt with by law enforcement, I submit that law enforcement must do the same with citizens. The reality is, most police officers are tolerant and respectful; but as the saying goes, one bad apple spoils the bunch. When it comes to Canada’s law enforcement, it is contrary to the public interest for citizens to mistrust police; for we need them in our communities and they need us.
Charged with a criminal offence. Call Calgary criminal lawyer, David Chow, for a free telephone consultation. David is a full service Alberta defence lawyer serving the Province of Alberta, as well as British Columbia and Saskatchewan.
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